The familiar lines were drawn. Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges – all in an age-old constitutional battle of federal power versus states’ rights.

This time around, however, the roles were reversed. Version 2018 is unlike the 1960s when extreme-right southern conservatives, claiming to champion states’ rights, defied but ultimately failed to stop federal efforts to protect civil rights. This time, the state of California passed three statutes under its police powers with the avowed purpose of promoting public safety and protecting undocumented state residents against a determined army of newly-unshackled federal immigration enforcement officers. And this time, the state mostly won.

​By enacting three new California laws – Assembly Bills, AB 103 and AB 450, and Senate Bill (SB) 54 – state legislators responded to aggressive federal immigration enforcement activities in the Golden State that they viewed as serious threats to community policing, public safety, and the state’s sizzling, low-unemployment economy.

AB 103 – effective June 27, 2017 – added California Government Code § 12532, directing the state Attorney General to conduct a review and report on county, local, or private locked detention facilities housing noncitizens within the state for civil violations of federal immigration laws. The AG must review and issue a report to the California legislature, Governor and the public by March 1, 2019, and must address conditions of confinement at each facility, due process and care provided to detainees, and the circumstances leading to their apprehension and placement in the facility. To permit this review, AB 103 mandates that the AG be provided with access to each facility, detainees, officials, personnel, and records.

reverifying the employment eligibility of any current employee unless required by federal law.

IWPA also requires employers served with an I-9 NOI to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun, and notify any affected employee or authorized union rep – again within 72 hours of receiving any subsequent I-9 related federal notices – “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records” (the AB 450 Notice requirements).

Senate Bill (SB) 54 – enacted October 05, 2017, and popularly titled the “California Sanctuary State Law” – is a comprehensive statute which, among other things, prohibits California law enforcement authorities from sharing a wide variety of information on persons in state custody, including the release date of a detained noncitizen, and from transferring the individual to federal authorities unless he or she has been convicted of certain crimes or unless authorized by a judicial warrant or a judicial probable-cause determination.

Predictably, U.S. Attorney General Jefferson Beauregard Sessions III threw down the gauntlet. The U.S. Justice Department filed a federal complaint in the Eastern District of California, requested a preliminary injunction, offered supporting declarations of senior officials in the State Department (Carl S. Risch) and DHS (Thomas D. Homan, Todd Hoffman and Rodney S. Scott). DOJ attorneys argued to Federal Judge John A. Mendez that these new California laws unconstitutionally usurp federal supremacy and sovereignty over control of the nation’s borders. Not shrinking from the fight, California AG Becerra filed a formal opposition to the request for preliminary injunction, a motion to dismiss the suit, and a legal brief.

No preliminary injunction would issue against AB 103, SB 54, and the AB 450 Notice requirements, requirements because they do not trench upon federal authority over immigration.

As for rest of AB 450, California authorities are preliminarily enjoined from:

fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees,

voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite, or

allowing them to access, review, or obtain employee records

​Sounding a note of somber exasperation, Judge Mendez implored the two political branches to act:

This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

As noted in the Introduction to this Order, this case is about the proper application of constitutional principles to a specific factual situation. The Court reached its decision only after a careful and considered application of legal precedent. The Court did so without concern for any possible political consequences. It is a luxury, of course, that members of the other two branches of government do not share. But if there is going to be a long-term solution to the problems our country faces with respect to immigration policy. it can only come from our legislative and executive branches. It cannot and will not come from piecemeal opinions issued by the judicial branch. Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

​U.S. v. California, Judge Mendez’s case, will continue to final judgment and injunctive orders. Meantime, however, the federal/California square-off over immigration enforcement is only in the early rounds. California has just shot additional volleys.

The latest California law, SB 785 – enacted with immediate effect on May 17, 2018 – prohibits the disclosure of an individual’s immigration status in open court, unless the party seeking to introduce it first persuades a judge in a private, in camerahearing, that such evidence is relevant and otherwise admissible. SB 785 was enacted in response to recent ICE arrests of immigrants in California courthouses, despite the March 2017 admonition of California Chief Justice, Tani Cantil-Sakauye, AG Sessions and then-Homeland Security Secretary John Kelly, reminding them that:

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.

In State of California, ex rel, Xavier Becerra v. Jefferson B. Sessions, et al., the state filed a July 9, 2018 motion for summary judgment and legal brief, supported by 13 declarations, requesting a nationwide injunction against imposition of immigration enforcement conditions on federal grants for state and local law enforcement. In a contemporaneous press release, AG Becerra’s office asserted that:

​[The U.S. Justice Department has] unlawfully withheld California’s Community Oriented Policing Services (COPS) grant funds, which the State uses to support a task force that combats large-scale drug trafficking. California’s motion seeks to have the court enjoin the federal government’s unlawful conditions for all jurisdictions and compel the issuance of JAG funding to all eligible jurisdictions in the United States that have yet to receive it, as well as to restore COPS funding to California.

​The California legislature and Governor Jerry Brown have once again entered the immigration fray.

This foray is not about its Sanctuary State legislation, recently enacted, and promptly decried by U.S. Attorney General Jefferson Beauregard Sessions III as “unconscionable”, and by Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), as “[forcing his] hand,” and causing him to “quadruple workplace crackdowns.”

granting voluntary consent to enter any non-public areas at a place of labor, except if presented with “a judicial warrant,”

granting voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without “a subpoena or judicial warrant,” except if an “immigration agency” (most often, this would be Homeland Security Investigations [HSI], an agency of U.S. Immigration & Customs Enforcement [ICE]) issues a Notice of Inspection (NOI) of Employment Eligibility Verification Form I-9s and other records required to be maintained under federal immigration regulations in order to verify employment eligibility;

Posted Notice of Worksite Inspection

Posta notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, within 72 hours of receiving an NOI, communicating the following information to employees:

An immigration agency, identified by name, has issued an NOI (a copy of which must also be posted at the same time) and will conduct inspections of I-9 forms or other employment records.

The date that the employer received the NOI.

The “nature of the inspection” to the extent known.

Notice to the Union

Givewritten notice to the “employee’s authorized representative,” namely, the exclusive collective bargaining representative, if any, within 72 hours of the immigration agency’s issuance of an NOI:

Delivery of Requested Copy of the Notice. Provide any employee, upon reasonable request, with a copy of the NOI;

Provide Notice of Suspect Documents. Within 72 hours of the employer’s receipt of a written immigration agency notice informing the employer of the results of the agency’s Inspection of the I-9s and the employer’s employment records, typically entitled, a “Notice of Suspect Documents” (NSD), provide a written notice to certain “affected employees” who apparently lack work eligibility (and any collective bargaining representative ) of the obligations of the employer and the affected employees, containing the following information:

A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.

The time period for correcting any potential deficiencies identified by the immigration agency.

The time and date of any meeting with the employer to correct any identified deficiencies.

Notice that the employee has the right to representation during any meeting scheduled with the employer.

No Re-Verifying Current Employees

Refrainfrom re-verifying the employment eligibility of a current employee at a time or in a manner not required by the employment eligibility verification provisions of the Immigration Reform and Control Act of 1986, 8 USC § 1324a(b), or that would violate any E-Verify Memorandum of Understanding the employer has entered into with the Department of Homeland Security.

* * *

To be sure, AB 450 offers sops feigning fealty to federal immigration law. Replete in the law are exceptions stating that these new mandates are not to be interpreted as requiring the employer to violate federal immigration law. California’s political leaders apparently believe that U.S. immigration rules– in the aspirational words of the Fifth Circuit court federal Court of Appeals – are “comprehensible by intelligent laymen and unspecialized lawyers without the aid of both lexicon and inner-circle guide.”

​Regrettably, they are anything but. The court said in this 1981 decision in words that ring ever more true today:

Whatever guidance the [immigration] regulations furnished to those cognoscenti familiar with procedures, this court . . . finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon. Kwon v. INS, 646 F. 2d 909 (5th Cir., 1981). (Emphasis added.)

AB 450’s supporters, the California Labor Federation and Service Employees International Union, defend the law because it adds what they apparently see as reasonable but necessary burdens on employers in order to protect the state’s sizable population of undocumented employees from immigration raids and the abusive practices of some employers:

“[M]illions of union members are immigrants and worksite immigration raids undermine workers’ rights in significant ways: they drive down wages and labor conditions for all workers, regardless of immigration status; they interfere with workers’ ability freely to exercise their workplace rights; they incentivize employers to employ undocumented workers in substandard conditions because the threat of immigration enforcement prevents workers from complaining; they undermine the efforts of the state to enforce labor and employment laws.

​However laudable this legislative goal, AB 450 would be better titled, the “Have Your Immigration Lawyer on Speed Dial Act,” because that is how this new law will likely play out. This is probably why the Society for Human Resource Management (SHRM) steadfastly opposed AB 450, stating:

​“[W]hile well intentioned, [AB 450] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law.”

Consider some of the issues this new law will raise.

Role of California state courts to interpret federal immigration laws? AB 450 grants the California Labor Commissioner or the state’s Attorney General the exclusive authority to initiate civil actions to enforce its provisions. Assuming that the courts find that this law can peacefully coexist with Congress’s plenary authority over immigration law, then presumably California state administrative officials and courts will now be required to decide whether or not particular actions by employers are “required” by federal immigration law.

Distinguishing between a subpoena and a judicial warrant? AB 450 permits employers to grant federal immigration officers access to non-public worksite areas if the employer is presented with a “judicial warrant.” Access to a company’s employee records, however, is not prohibited under the law if immigration officers tender to the employer a “subpoena or judicial warrant.” Few employers likely realize, however, that a subpoena may be issued by a court or by administrative agency officials.

Under Immigration and Nationality Act § 235(d)(4); 8 U.S.C. §1225(d)(4), immigration officers are empowered to issue administrative subpoenas for books and records. If an employer refuses to comply with an administrative subpoena, however, then immigration officials can only enforce it if they persuade a federal judge to issue a judicial order. Yet – in the real world – when federal immigration agents issue an administrative subpoena carrying an official federal seal and, by its terms, demanding access to business records, pity the unsophisticated HR manager who violates California law if s/he “voluntarily” provides the business’s employee records.

Who are “immigration enforcement agents?” AB 450 does not define the term “immigration enforcement agent.” The phrase undoubtedly refers to officers of ICE and HSI. Less clear is whether other federal immigration officers should be characterized as immigration enforcement agents under this law. Federal officers with immigration enforcement authority — all of whom have taken an oath to “well and faithfully discharge [their] duties” — may hail from any number of Executive Branch departments and agencies. Under 8 CFR § 1.2, USCIS has set forth a broad definition of DHS employees who are designated by regulation as “immigration officer[s].” These include: “immigration enforcement agents, forensic document analysts, immigration agents (investigations), immigration enforcement agents, immigration inspectors, immigration officers, immigration services officers, investigator, intelligence agents, intelligence officers, investigative assistants, and special agents, among others.”

Conceivably, AB 450, by its terms, could also extend to federal officials performing immigration functions within the Departments of State, and Labor. Moreover, the current practice of one Department of Homeland Security (DHS) sub-component, the Fraud Detection and National Security (FDNS) Directorate of United States Citizenship and Immigration Services (USCIS), discussed frequently and critically in this blog, to conduct unannounced “administrative site visits” or “on-site compliance reviews,” raises immediate concerns about its officers’ future interactions with California employers.

Although FDNS asserts that it is not an immigration enforcement agency, a current job opening for the position, “Immigration Officer (FDNS),” – accessible here, and if the posting is taken down, also here – confirms that, “[every] day, our Immigration Officers (FDNS) . . . identify, articulate, and pursue suspected immigration benefit fraud.” Moreover, employers seeking to hire foreign workers must sign petitions under penalty of perjury for virtually every request for immigration benefits submitted to USCIS, requests which contain the acknowledgment, “I also recognize that any supporting evidence submitted in support of this petition may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews,” see e.g., the Petition for a Nonimmigrant Worker (Form I-129 Part 7, p. 6).Indeed, the task of immigration site inspectors, according to FDNS, are to:

Verify the information, including supporting documents, submitted with the petition;

Verify that the petitioning organization exists;

Review public records and information on the petitioning organization;

Conduct unannounced site visits to where the beneficiary works;

Take photographs;

Review documents;

Speak with the beneficiary [the nonimmigrant worker sponsored under an employment-based petition by an employer]; and

​The conceit asserted by FDNS that it is not an immigration enforcement agency is also belied by this disclosure on its website:

USCIS has formed a partnership with Immigration and Customs Enforcement (ICE), in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. (Emphasis added.)

​​Even if a line can fairly be drawn between FDNS’s pursuit of immigration fraud and ICE’s activities in conducting criminal investigations, the use by AB 450 of the term, “immigration enforcement agent,” suggests at the very least an agency relationship between FDNS (the agent) and ICE (the principal).

Thus, a California employers could well face liability under AB 450 if it voluntarily consents to an FDNS officer’s request for access to the beneficiary’s “physical workspace,” the opportunity take to “take photographs” of the workspace (which routinely happens), and conduct a “[r]eview [of] records.” Yet, if a California employer were to refuse such a request, FDNS officers will no doubt report that refusal to USCIS adjudicators, who then routinely issue a notice of intent to deny or revoke work-visa petition approval. Notices of intent to revoke approval are especially problematic, because if they cannot be overcome in light of the obvious state law impediments in AB 450, then USCIS will revoke the employment authorization of the particular beneficiary. The result of a revocation is that the employee must be terminated upon the employer’s receipt of the notice of revocation, and that termination may constitute a failure on the part of the beneficiary to maintain lawful nonimmigrant status, which itself would trigger an obligation to depart the United States immediately with his or her immediate family members, or face removal from the United States at a hearing initiated by ICE before an Immigration Judge.

These problems become even more complicated if the employer provides facilities for its own workers and for the employees of any of its contractors, consultants, staffing companies, or vendors. While AB 450 does not prohibit a California employer from voluntarily sharing whatever information it might possess about the employees of its contractors, this new law, by its terms, mandates, on penalty of civil fine, that the employer refuse to grant voluntary consent to “enter any non-public areas at a place of labor” – apparently irrespective of the party employing the particular workers at the place of labor. Such a refusal likewise under current USCIS practice would lead to a similarly insurmountable notice of revocation, thereby terminating the employment authorization and nonimmigrant status of a contractor’s who was the subject of an FDNS unannounced site visit, and conceivably, resulting in a breach of contract by the customer for precluding the vendor from fulfilling the object of the contract, i.e, the rendition of contractually-agreed services.

Good faith immigration compliance and voluntary internal audits? DOJ and DHS component agencies encourage employers to voluntarily conduct internal immigration-compliance audits, and prescribe procedures to (a) correct I-9 paperwork errors, and (b) reasonably investigate circumstances suggesting that an employee may lack employment authorization. Such audits sometimes require the cooperation of current employees, as, for example, if corrections must be made to the employee portion of the I-9, Section 1, or if the employer suspects that the documents of identity and employment eligibility that the employee previously presented may not be genuine.

Given that AB 450 prohibits reverifying a current employee’s eligibility to work in the United States, should California employers defensively adopt “head in the sand” policies to preclude or discourage voluntary immigration compliance audits? The answer will depend on the employer’s business circumstances and employment practices in the particular industry. It may also turn on whether an employer has become aware of facts or credible assertions that call into question the employment eligibility of one or more employees.

Under the constructive-knowledge rule, an employer will be deemed to know whatever could have been discovered if a reasonable investigation had been conducted. Thus, if an employer declines to investigate suspicious circumstances suggesting unauthorized employment, ICE can maintain that an employer has violated federal law because company officials should have knownthat the business had hired or continued to employ a worker while aware that the individual had no right to be employed in the United States. Consequently, as SHRM feared, AB 450 will “force human resource professionals to decide between abiding by federal law or state law.”

Unintended harm to workers, their unions, and business operations? While the constructive-knowledge rule, in effect, requires an employer to conduct a reasonable investigation, the rule does not dictate the speed of the investigation. In past ICE investigations, some field offices have expressly allowed an employer time to respond to an NSD by phasing-in the duration of time when workers whose employment eligibility has been questioned must reverify their employment eligibility. A compliance phase-in would give the employer time to reverify its challenged employees in tranches. Without internally posting a notice to employees that ICE has begun in I-9 investigation, an employer granted phase-in permission by ICE would (a) privately and without fanfare reverify the employment eligibility of its most recently hired or least skilled workers, (b) speedily hire replacements (who would quickly be trained by employees with longer tenure or greater expertise in the operations of the business), and (c) then reverify the most senior or essential workers.

In this way, employers could conduct a constructive-knowledge investigation sequentially over time, business operations could continue with less disruption, the most valued employees could continue in employment for the time being, and unions would continue to receive dues payments, while retaining the ability to negotiate severance packages for terminated employees.

What, then, is the likely outcome of AB 450’s requirement that the employer give public notice within 72 hours to all employees and the local union that ICE has served a NOI? Today, many employers have found that when employees learn of an ICE worksite investigation, they quickly disappear for fear of arrest and deportation. Leaving the employer in the lurch, an unknown number of undocumented workers merely purchase new identities and forms of work permission on the street – documentation that, with the increasing sophistication of counterfeiters, will appear to be genuine, and thus be used to get a new job with the next employer. And so the cycle continues. Rinse and repeat. Consequently, the 72-hour NOI notice requirement in AB 450 will likely only serve to disrupt businesses and prompt undocumented workers to switch jobs, while shrinking the duration and amount of dues payments to unions.

A bonanza for translators? AB 450 requires employers, within 72 hours of receiving an NOI, to post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, announcing that ICE has served an NOI on the employer, and providing other required details. Although not clearly phrased, the posting obligation seems to include the duty to provide a translation of the NOI itself into the language(s) ordinarily used to communicate with employees.

California is a state that prides itself on its diversity, which necessarily entails a noncitizen population speaking a multiplicity of languages. Many workers in the state do not speak English well, but do speak a native language, be it Spanish, Chinese, Tagalog, Vietnamese, Armenian, Khmer, Farsi, or Russian, among others.

Heaven forbid – for example – that ICE serves an NOI on a Friday. This will likely leave many an employer scrambling first to draft the AB 450 notice, and then to find weekend translators capable of quick turnaround to produce the required translations. Perhaps competent translators can be found, but probably only at a premium price for speedy, afterhours delivery.

The drafters of the legislation apparently did not realize, however, that ICE officers are usually quite willing to extend its own 72-hour regulatory deadline by a week or two for an employer to turn over its I-9s and other required records, or even longer, if the employer can provide a reasonable explanation for its inability to satisfy the 72-hour rule.​California lawmakers made no provision for extension of the posting deadline in AB 450. It therefore doesn’t take a Hollywood scriptwriter to visualize how this might play out:​

(Scene 1) Mid-day on a Friday afternoon, ICE serves the employer with the NOI,

(Scene 2) As the weekend is about to begin, the employer scrambles to find a lawyer begins who will help word the AB 450 notice,

(Scene 3) At the same time, the employer scrambles to locate translators to prepare translations into multiple relevant languages,

(Scene 4) On Monday afternoon, just hours before the 72-hour deadline in AB 450, the employer posts the translations on the employee bulletin board,

(Scene 5) Later that afternoon, the workers read the posting, interpret it as a “run notice,” and flee the building,

(Scene 6) Minutes later, ICE officers – aware of the California statutory deadline – are already poised in the parking lot to apprehend the fleeing workers and process them for deportation, and​(Scene 7) en Tuesday morning, the factory is idle and quiet, except for the angry voices of union bosses complaining to management about unfair labor practices.

​* * *

​​AB 450 is not the first California encroachment on federal immigration law, and not likely the last. As the courts, federal immigration agencies, and the NLRB are left to sort out federal from state legal rights and duties amid the detritus of this law, California politicians will likely be at it again, concocting new immigration laws, while figuratively quoting a former governor’s thespian line: “[We’ll] be back!”